Storm water run-off disputes – resolving neighbor wars

Storm water run-off is a condition that can create serious “neighbor wars” when changes occur unexpectedly. Personal animosity arises quickly when one neighbor’s development or renovation of its property, creates new or increased flow of surface water that damages its neighbor’s property. The end result is often litigation and undying resentments that last for years. Yet these disputes can be perfect candidates for collaborative dispute resolution. If the parties can focus on a mediation process that looks for a reasonable technical solution, they will be far better off and problems solved in a much quicker and cost effective manner.

The conditions created by development and the resulting change in water flow and absorption patterns are summarized in the attached diagram. As vegetation and natural landscapes are changed to impervious materials by construction, surface flows increase potentially creating problems for downstream neighbors. If appropriate structures required by proper engineering and regulations are included in the projects, these impacts can be mitigated or eliminated. However this can be a somewhat imprecise science and the nature of storm conditions has also been changing over the years.

One recent experience involved farmers and a residential development in a county in Pennsylvania. After years of frustration and attempts to seek help from the county government, the farmers ended up suing the home owners’ association and the developer for damages caused to their farms by increased storm water run-off. The development had allegedly increased the water flow onto the adjacent farms even though the water management plan was approved by the county and showed no change in run-off. The farmers experienced erosion, increased mud patches as well as the formation of potential new “wetlands”. One major concern was that endangered turtles would inhabit the new conditions, which would dramatically change the land use requirements on the farms.

My next post will describe how this matter was resolved in a mediation process that focused primarily on searching for a technical solution that all the parties and their experts could agree to.

Storm water run-off disputes – resolving neighbor wars

increasing storm water run-off

Storm water run-off is a condition that can create serious “neighbor wars” when changes occur unexpectedly. Personal animosity arises quickly when one neighbor’s development or renovation of its property, creates new or increased flow of surface water that damages its neighbor’s property. The end result is often litigation and undying resentments that last for years. Yet these disputes can be perfect candidates for collaborative dispute resolution. If the parties can focus on a mediation process that looks for a reasonable technical solution, they will be far better off and problems solved in a much quicker and cost effective manner.

The conditions created by development and the resulting change in water flow and absorption patterns are summarized in the attached diagram. As vegetation and natural landscapes are changed to impervious materials by construction, surface flows increase potentially creating problems for downstream neighbors. If appropriate structures required by proper engineering and regulations are included in the projects, these impacts can be mitigated or eliminated. However this can be a somewhat imprecise science and the nature of storm conditions has also been changing over the years.

One recent experience involved farmers and a residential development in a county in Pennsylvania. After years of frustration and attempts to seek help from the county government, the farmers ended up suing the home owners’ association and the developer for damages caused to their farms by increased storm water run-off. The development had allegedly increased the water flow onto the adjacent farms even though the water management plan was approved by the county and showed no change in run-off. The farmers experienced erosion, increased mud patches as well as the formation of potential new “wetlands”. One major concern was that endangered turtles would inhabit the new conditions, which would dramatically change the land use requirements on the farms.

My next post will describe how this matter was resolved in a mediation process that focused primarily on searching for a technical solution that all the parties and their experts could agree to.

Use of experts in mediating conflicts in creating the built environment

If you have ever been involved in litigation or arbitration of construction or environmental disputes, you have experienced the world of “dueling” experts. This is probably one of the most expensive aspects of an adversarial process in the resolution of these matters.

In an adversarial forum, significant time and expense is involved in: identifying experts; getting the expert who will testify to review all information and produce an expert report; producing draft and final reports; producing the report in discovery and deposing the expert; and preparing and having the expert testify at the hearing. All of this wouldn’t be quite so troublesome, if the other side wasn’t going through the same time and expense of retaining an expert – and making certain their expert disputes and rebuts as much of the other side’s expert opinion as possible.

How can the use of experts be better applied in mediation of these types of disputes?

USE OF A NEUTRAL TECHNICAL ADVISOR – The first effort should be to see if the parties could agree on a single neutral technical advisor. This advisor can provide a non-binding (or binding) opinion on the technical matter in dispute. The parties may end up accepting his/her opinion as is, rather than continue with the expense of “dueling experts” in the next step.  When outright acceptance doesn’t occur, the neutral advisor’s technical opinion can be very valuable in narrowing the issues.  If the parties cannot agree exactly to his/her findings they can be left with fewer issues and a better basis to negotiate.

USE OF PARTY EXPERTS FOR MEDIATION – When it makes sense for each party to provide its own technical position for a mediation, individual party experts can be used much more efficiently in mediation than in litigation/arbitration.  The parties can abbreviate the experts’ analysis, produce a confidential finding, and reserve the right not to use the expert in litigation.  Probably most importantly, the parties in the context of a mediation, can get the experts to talk to each other, try to find common grounds and conclusions, and hopefully again narrow the issues to be dealt with in getting to a settlement.